Is My Social Media Policy Legal?

Posted by Edward Sharkey on Thu, 02/09/2017 - 05:00

Even small employers are getting wise to the prudence of solid employment policies. This includes implementing policies concerning social media. Businesses are trying to be practical about protecting valuable assets, like their brand and confidential information. At the same time, government regulators are acting aggressively in challenging efforts to restrict employee use of social media.

In a recent case, the National Labor Relations Bureau (NLRB) affirmed a decision by a judge who held that Chipotle violated the National Labor Relations Act (Act) by adopting a restrictive "Social Media Code of Conduct." The code prohibited employees from “posting incomplete, confidential, or inaccurate information and making disparaging, false, or misleading statements."

The employee wrote multiple tweets disparaging his employer. In response to one customer's gratitude for complimentary food, the employee wrote, "nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?" When another customer tweeted a remark about receiving Chipotle's guacamole for free, the employee wrote, "it's extra not like #Qdoba, enjoy the extra $2."

Chipotle fired the employee for violating the policy, and the employee complained to the government. The NLRB held that the policy violated the Act because prohibiting the publication of false or misleading information is too broad a restriction. A prohibition is only permitted where the employee has a proven malicious motive – meaning he knows that what he is publishing is false.

In addition, any prohibition against publishing confidential information must carefully define “confidential” so that employees do not interpret it to cover subjects they are legally permitted to discuss. The discussion of topics like work conditions or wages is protected under the Act, even though an employer may consider them confidential. The NLRB held that failing to carefully define the term could chill protected speech.

Finally, the NLRB stated that an add-on legal disclaimer, which assured employees that the policy is not meant to infringe on employees' labor rights, was not enough to fix the unlawfulness of the policy. Employers must take greater care to avoid chilling their employees’ right to publicly comment on work conditions.

The NLRB probably will not track down your business and its social media policy all on its own. But it is likely to become involved if you ever need to discipline an employee. So if your policy is meant for more than show, give it a look and see how it stacks up to Chipotle’s.